Saturday, November 27, 2004

The Associate Dean of the Yale Law School writes (registration required):

MOST MAINSTREAM newspapers have already dismissed stories of voting fraud and voting rights violations in the November election as baseless or irrelevant. Sen. John Kerry's concession is supposed to demonstrate that there is no story here. Give up, go home, it's all over.

But it's not over.

The legitimacy of our democratic process is an issue more important than Mr. Kerry's future or the results of 2004. That legitimacy has been called into question repeatedly over the past few weeks, and doubts will linger as long as credible indications of error, negligence, disenfranchisement and fraud are not addressed.

We would like to believe that voting irregularities were identified and corrected, that participants fulfilled their duties appropriately, that the machines performed reliably and that the total discrepancy between voter intention and recorded results was less than the margin of victory in relevant contests.

But that conclusion must be reached on the basis of evidence, not blind faith. My own observations as a volunteer poll watcher in Florida do not give perfect confidence.

We experienced a troubling number of memory card failures where I was based in Volusia County, for example, and we tried to minimize the disruption to voters even though data security was compromised. In Franklin County, Ohio, a machine error resulted in an extra 4,000 votes for President Bush. In Guilford County, N.C., a machine error cost Mr. Kerry 22,000 votes. Similar problems were experienced in Nebraska, Indiana and other states. These glitches that we know about have reportedly been fixed, though a re-vote is necessary in a different North Carolina county.

Disturbingly, several Web sites have demonstrated the ease of hacking into the AccuVote TS machines made by Diebold Election Systems, the company that for $2.6 million recently settled a lawsuit by California over voting machine problems. Another major manufacturer of electronic voting machines, Election Systems & Software, has also been subject to criticism for machine breakdowns and vulnerability. There is no evidence of fraud, but neither manufacturer has assuaged widespread concerns about inappropriate partisanship and unreliability.

There is also reason to question the competence of election officials in resolving registration and voting problems. Many voters were denied the opportunity to cast a regular ballot or to vote within a reasonable period of arriving at the polls.

At one heavily black precinct in Volusia County, for example, more than 10 percent of those turning out to vote were unable to cast a regular ballot. Many of these voters simply departed after waiting in line for several hours and then being told by poll workers that their provisional ballots "would not be counted." Knox County in Ohio reported voters waiting in line for over nine hours. In Warren County, Ohio, observers were barred from monitoring the vote-counting process.

How can we expect voters - especially young, disadvantaged or newly registered voters - to have faith in our voting system? How can we expect our allies to take seriously U.S. efforts to hold elections in Iraq and elsewhere? How can we be confident that the most fundamental principles of American democracy - one person, one vote; rule by the people; transparency in government - are not in jeopardy?

American legitimacy demands that the news media, the parties and all political leaders take seriously the challenges presented by the 2004 election: We need an audit of the election process, validation of the election results and corrective measures to ensure the legitimacy of future elections.

To begin with, that means supporting the audit efforts already under way. Recounts are expected in Ohio and New Hampshire, and election results may be contested in Florida, New Mexico and other states. Grass-roots organizations have requested voting data from precincts across the country, and scientists from the Massachusetts Institute of Technology, the University of California, Berkeley and other universities have begun to analyze surprising voting patterns.

This should be a priority for Congress, with vigilant participation by independent news organizations. The complete process - from registration through vote tallying, including all equipment and procedures - must be thoroughly and publicly assessed.

No reasonable argument can be offered against disclosure and accountability. We can afford whatever expense, inconvenience, distraction and possible embarrassment may be caused by an election audit and congressional investigation. What we cannot afford are unresolved doubts about the legitimacy of our democratic government.